Unlawful assembly? Capitol steps arrests raise key questions

State Police in riot gear were called to help prevent unlawful assembly at the Capitol.

photo by lisa provence

"This is what democracy looks like," protesters chanted-- until told they'd be arrested if they stayed on the state Capitol steps.

photo by lisa provence

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You can eat lunch on the steps of the Capitol, but you can't protest there.

Photos of gun-equipped riot officers massed at the seat of state government and arresting 30 protesters– mostly women– have sparked a debate about the official response, which may have included up to seven hours of incarceration. The March 3 Richmond incident followed passage of the controversial bill requiring a pre-abortion ultrasound exam.

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"The protesters seemed to be very peaceful," says House Minority Leader David Toscano (D-Charlottesville). "When you see weapons on the grounds of the Capitol, you have to wonder whether it's proportional."

Toscano fired off a letter to the Capitol Police asking for a review of protocols, noting that "the images of armed State Police in full riot gear removing Virginia citizens from the Capitol steps is troubling to many of our constituents and potentially places Virginia unfavorably in the national spotlight."

In meeting with Capitol Police, Toscano learned that the decision to arrest was theirs, not the governor's. He also discovered that their regulations on protests haven't been reviewed since 1970– at the height of Vietnam War dissent.

"I've seen a lot of protests in my time," says Toscano, who says he was arrested in front of the White House while protesting Vietnam. "There are always issues of appropriate use of force."

Jean Burke, a receptionist at the Charlottesville Free Clinic, was one of those arrested for refusing to leave the Capitol steps.

"That was bizarre to me," says Burke. "I didn't understand then and I don't understand now, particularly that on the steps of your own legislature, you're not allowed to be there. I know politicians hold rallies there all the time."

Burke says she was kept handcuffed on a hot bus for seven hours.

"The cuffs were very tight," she says. "We were not allowed to use the bathroom. We were not allowed water for over seven hours. One young woman wet her pants, and some of the women became ill."

Burke, 48, says it was the first time she'd ever been arrested.

"It took me 48 years to get really ticked off," she says. "I'm worried the controversy over the way we were treated will overshadow the reason we were there– the assault on women's rights."

It was also the first arrest for Cheryl Oliver, 55, the former office manager for the Charlottesville Democratic headquarters. She says she was detained on the bus for about five hours, and then another one and a half to two hours in a police station.

"It was about three hours before we were allowed to go to the bathroom," recounts Oliver. "The Capitol Police did not offer– not until some women started screaming. It's really uncomfortable being cuffed that long."

Colonel Steve Pike, head of the Capitol Police, disputes assertions of mistreatment.

"The folks were provided opportunities to go to the bathroom," says Pike. "To characterize 30 people as kept on a bus for seven hours– that's not accurate."

He says delays in processing were dictated by the number of magistrates at the Richmond lockup, something outside of Capitol Police control.

According to Pike, the ultrasound protesters had an hour-long permit to assemble at the Bell Tower beginning at 11am but that speakers didn't start until 12:30pm.

"We told them they had to leave until 2," says Pike, noting that protesters departed, marched around Richmond, and returned to the Capitol grounds.

"Instead of going to the Bell Tower, they went up to the Capitol," says Pike. "They were told not to. There were 277 other folks there that day to visit the Capitol. What if you drove to Richmond to visit and ran into that?"

The U.S. Supreme Court has ruled that demonstrations can be restricted to a reasonable time, place, and manner, says Kent Willis, soon-to-depart executive director of the ACLU of Virginia. He notes that people gather spontaneously on the Capitol steps all the time without permits and without threat to legislators, who weren't in session that weekend.

"The Bell Tower is in a corner about as far away from the state Capitol as you can get while still being on the grounds," says Willis. "The question is whether relegating protesters to the far corner of the state Capitol is reasonable."

Willis is also concerned about possible civil rights violations during the arrests. "We feel there was overreaction by police," he declares. "We feel they should never have arrested them."

Richmond attorney Wayne Powell, who's running for the 7th District Congressional seat held by Eric Cantor, agrees and says the typical treatment for someone accused of trespassing in Virginia is a summons, not a multi-hour detention.

"I was just shocked when someone told me women had been on a bus since 3:30," says Powell who showed up that evening around 6:30pm. "I knew they hadn't had water. I was so outraged by what I saw. One lady soiled herself."

Powell offered to represent pro bono 18 of the 30 protesters who are charged with trespassing and unlawful assembly.

"The second charge in particular is a constitutional issue," says Powell, who is filing a motion to dismiss both charges.

While Capitol Police have taken heat, they've also gotten support, particularly from Republican legislators, including Delegate Steve Landes, who represents western Albemarle County.

While Delegate Rob Bell, who represents northern and eastern Albemarle and has announced a run for attorney general, did not return phone calls from a reporter, the issue looms large for House Minority Leader Toscano.

"The Democratic caucus feels it's important to get the facts straight," says Toscano, "and that people not be met with inappropriate force when exercising their Constitutional right to protest."

27 comments

dude March 25th, 2012 | 8:37am

"There were 277 other folks there that day to visit the Capitol. What if you drove to Richmond to visit and ran into that?"

Well, that was the point! Our freedom to assemble is not trumped by inconveniences to tourists, the bruised egos small minded politicians, or the testosterone fueled irrationalities of a paramilitary police force.

Cville Native March 25th, 2012 | 8:48am

Okay, I don't want to see the few protestors out on Rio Road in front of Planned Parenthood anymore - think they should be met with riot geared Albemarle Police and arrested for unlawful assembly. That is sarcastic.

Just because you don't agree with what a protester has to say doesn't mean they do not have the right to protest - 1st Amendment here - on PUBLIC property. As long as they are on public property - if arrested, violates 1st amendment. Which the 1st Amendment TRUMPS all state codes/laws.

Any delegate in this state that supports the actions by the police (ordered by the Governor) should not be re-elected.

Marshall Chase March 25th, 2012 | 8:52am

The Commonwealth of Virginia, proud of its heritage in the American Revolution, and her many sons and daughters who have paid the ultimate price in defense of James Madison's Constitution should be nothing less than ASHAMED of the actions of the Capitol Police, who seem to have forgotten THEIR oath to Protect and Defend it. These politicos who defend the police action should resign. Their actions and those who support them is nothing short of cowardice. To my sisters and brothers who stood their ground, I thank you and honor your resolve. THAT is the heritage of the Commonwealth.

Unless of course, you are a Tea Partier complaining about not having access to protest in front of your Dem Rep's office because of rules. Then naturally its a violation of Constitutional Rights.

Gail Hyder Wiley March 25th, 2012 | 10:17am

The U.S. Supreme Court, in Edwards v. South Carolina, a case very similar to the situation at the Va. Capitol, issued the following in its opinion by Justice Stewart:
"The Fourteenth Amendment does not permit a State to make criminal the peaceful expression of unpopular views."

There will be a bus going from Charlottesville to Richmond for a statewide rally at Abady Park in support of women's rights on April 28, part of a network of rallies nationwide that day. Details at www.wearewomenmarch.net.

Eileen Davis, RN March 25th, 2012 | 10:34am

When Gov Scott Walker ordered the capital police in Wisconsin to remove protestors from his state house, their top cop said, "we are not palace guards" Sadly Lt Pike didnt feel the same. His statement in this article suggests our capital is an entertainment site like Williamsburg rather than a standing, living testament to our democracy and Jefferson's vision. I spent alot of time on that day trying to convince Lt Pike that "watchful waiting" was the best position and that women singing on steps posted no threat and would end organically at 3pm when permit expired as the previous 4 rally's had, and that he knew that from our prior behavior. We have had 2 more vigils and multiple "protest Picnics" since and all of them have been w/o incident or threat to visitors. The escalation of threat on 3/3 was by law enforcement. It turned out to be the pr nightmare for Virginia that I predicted to him it would be. "You are not Palace Guards"

Feet to the Fire March 25th, 2012 | 10:47am

No, Caesonia. The JATP's issue was with Tom Perriello - not the landowner. He kept his office on property whose owner had a documented record of discriminating against groups based on their political idelogy. She only lodged complaints with the police when conservative protesters gathered and let it go when Organizing for America (videotape proved it to be the largest and loudest protest held by any group) and other liberal groups protested.

Again, SHE was within her rights to discriminate. But PERRIELLO should have objected and pitched his tent elsewhere. The landlord was more than just a landlord, but a political supporter and financial contributor who even held a fundraiser for him. Their relationship was such that he could have likely gotten out of the lease had he asked her. Instead, he feigned a lack of control and raised his hands up as if to say there was nothing he could do about it.

Fortunately, the JATP and other conservatives drove him from his office - making him a one-termer and ultimately resolving the office access problem on our own.

faith March 25th, 2012 | 12:05pm

Maybe they were in riot gear because they were afraid that someone might try to attack them with ultrasound wands, and they needed to shield their genitals......

perspective March 25th, 2012 | 12:20pm

You know liberty has gone too hell when your faced with a bunch of "Gorts" ready to kick your brains out if you sneeze at them.

The First Amendment is not something to be constrained in any fashion. The phrase begins "Congress shall make NO LAWS." If we so quietly give away our First Amendment now, where does that leave our democracy?

I understand we live in a world with terrorists. Our world has always had terrorists. Like it or not, terrorism tends to be contextual and there are times some would accuse our country of terrorism.

Fear is no way to govern or set policy. Innocent until proven guilty is more than a mantra. Why are the 31 people arrested on March 3rd not allowed on the Capitol grounds right now?

If the First Amendment is your final straw, join us on the Capitol grounds every Thursday for a Picnic-in. We are not going away and we hope to ensure March 3rd of the 2012 spring follies is a constructive, educational moment for our state and country. Virginia deserves to have this be one of the first topics for our next legislative session.

Put Your Stunner Frames On March 25th, 2012 | 3:50pm

This is exactly what you asked for with your one sided article celebrating the detention and torture of an anti-abortion activist without charges. It's your own damn fault this is happening nationwide.

Put Your Stunner Frames On March 25th, 2012 | 3:54pm

You see, when you celebrate the persecution of somebody for expressing a view you disagree with you pave the way for the persecution of those who express views you agree with. You helped create this society and now you're having regrets it looks like.

I asked the cop who was following me if I was under arrest and he said "no, I just want to talk to you". The law says I can walk away at that point, and I have a fifth amendment right not to talk. I was accosted without being arrested and detained for expressing my distaste. I can think about whatever I want too, I can say what's on my mind. That's the first amendment. Side issue. I ask to you consider why this story (and other similar ones elsewhere being brought to you by mainstream media), and these ultrasound bills (was this idea initiated by Rick Perry, phony conservative globalist agenda puppet) are being passed in the first place. They're being surrepticiously pushed by the pro-abortion government behind the scenes, just as the police state crackdown was pushed by the pro-abortion government behind the scenes so that they could have a pro-abortion mainstream media heyday with it, knowing also that many pro-lifers would fall for it too, and be conditioned even more to go along with the police state. This is not to say that ultrasounds wouldn't reduce the number of abortions, or that there are some true conservatives who truly believe this is a good thing. And I'm not a doctor, I'm sure plenty of obstetricians would support it for standard medical ethics. But true pro-lifers want one thing and that is to outlaw abortion entirely. And this bill doesn't do that, whether it helps move us towards that or whether it assists the other side in making the movement look insensitive, or invasive, is another thing. So just remember what may be going on behind the scenes. Rick Perry. Yosemite Sam in pink underwear.

Put Your Stunner Frames On March 25th, 2012 | 5:55pm

Back to the side issue. They broke the law (Legitimate law or illegitimate, they broke it) and were arrested for it. I didn't. I asked if I had broken any law and was told that I wasn't. But it's bad to arrest them and it's good to arrest me if I take the fifth when I'm told I'm not under arrest and then renege on that when a cop puts his hands on me and I express distaste with the cop and then, only then am I thrown in the paddy wagon without charges. And that's celebrated by the writer of the article, who's conduct required this magazine to print a retraction. Side issue.

Put Your Stunner Frames On March 25th, 2012 | 6:00pm

It was entirely selective enforcement and it was deliberate not to oppress the movement but to give the public an opportunity to sympathize with the movement and others in the public to sympathize with the police state. And it's to get us all fighting with each other. That's the real deal.

Edgar Summer March 25th, 2012 | 9:40pm

If women want to be equal then stop whining.... sitting on a bus with your weak bladder is no comparison to cops beating union organizers with bats in the 1920s.

Welcome to the real world.

G March 26th, 2012 | 7:28am

Wait. Your contention is that the gross injustice of beating union organizers justifies less violent injustices now? Interesting take on civility.

Gasbag Self Ordained Expert March 26th, 2012 | 9:42am

7 hours on a hot bus, handcuffed, no water, no rest room facilities......

........... a/k/a street justice!!!!

And, it sounds like the capital police and state police need a review on Virginia state code section § 19.2-82.... "A person arrested without a warrant shall be brought forthwith before a magistrate..."

Forthwith does NOT mean 7 hours.

Old Timer March 26th, 2012 | 2:34pm

Feet To The Fire,

" The JATP's issue was with Tom Perriello - not the landowner. He kept his office on property whose owner had a documented record of discriminating against groups based on their political idelogy."

Except that's exactly what the Tea Party and the Conservatives do. The point of the post was the Republicans, especially Tea Partiers, wail over laws and their rights only when it affects what they want to do. Its OK for the Richmond Police to do what they did, because the women might more 'liberal' or have 'liberal' ideas. Its not OK if its done to them.

Get it now?

The OP never said what happened at Perriello's was correct, though they have less to stand on than the women in Richmond.

Skipd March 28th, 2012 | 5:37am

Guess my question is this........did these folks break any other laws going to or from this rally? If not, why not?

Caesonia March 28th, 2012 | 7:35am

Weak bladder Edgar? 7 hours? When men bear babies then they can start talking about weak bladders. Besides, anyone male or female who doesn't pee for 7 hours is dehydrated.

Gasbag Self Ordained Expert March 28th, 2012 | 1:33pm

I would think urination is an age thing. When I was a young man and had a job where I drove 80% to 85% of the time, I could go all day long without needing to find a rest room. Thirty years later I need to find a rest room several times a day. I think 25 to 30 year old women sitting in this bus handcuffed for seven hours probably had no problems, other than the fact they were not produced before a magistrate FORTHWITH as the law prescribes. But 45 to 60 year women were most likely in pain and needed to go.

I would hope some of those detained on the bus for 7 hours would contact their lawmakers in reference to the FORTHWITH clause in the law. If a person, for whatever reason(s), can not be produced before a magistrate FORTHWITH, there should be a clause to release said person on a summons. Others might even contact their own attorneys. The law in handling these "prisoners" was not followed, by those who are suppose to enforce the law!

I have experience with this FORTHWITH rule in the law. In one of my false arrests in 1997 the judge asked the rookie how he managed to hold me in custody for 7 hours before producing me before a magistrate. The rookie started answering with a half baked tale about the paperwork, fingerprints, interview, blah blah blah. The judge said he knows how long it takes to process somebody, what did you do for the other 6 hours? The judge already knew the answer, the rookie had solicited other cops to look for a real crime to charge me with once he realized he had messed up so badly. They even asked a police Lt. to search my home and look for a real crime to charge me with. The Lt., now deceased, refused.

For those who wish not to read about my life experiences again, just go back a few paragraphs and unread what you just read! HaHaHa!

Jean Burke March 28th, 2012 | 8:05pm

Col. Pike misspeaks. We were indeed "kept on a bus for seven hours". (It may been "only" 6 hours - since we were cuffed behind our backs the entire time it was a little hard to check our watches.) We were "provided opportunities to go to the bathroom" only after 4 hours of asking, begging, pleading. Finally one woman simply had to wet her pants. We were denied water until approximately 10:00 pm - 7 hours after originally being detained. Again, we asked, begged, and pleaded, since the bus (closed windows, closed door, AC turned off) was extremely hot. Please keep in mind that we were detained and given this treatment for MISDEMEANOR summonses.

We were not advised of the charges against us, nor were we read our Miranda rights, until we had been in custody for over 6 hours.

They had riot police and SWAT troops armed and ready to deploy. They had DOC buses waiting for us. And yet they claim they were unprepared for the number of arrests and had only ONE magistrate on duty?

We were not beaten, raped, or otherwise subjected to violence, as countless other civil-disobedience arrestees have been throughout this country's history. I shudder to think that some folks believe that if you haven't been cracked on the head with a billy club then you should be pleased with the way you were treated.

Gasbag Self Ordained Expert March 28th, 2012 | 8:41pm

Jean Burke, have any of you discussed the law I mentioned above with your attorneys? FORTHWITH does not mean "as soon as possible". The definition of FORTHWITH means "immediately; at once; without delay:" Once you are arrested without a warrant you are to be produced FORTHWITH to a magistrate.